IQBAL SHAHID AND OTHERS v. SECRETARY FOR JUSTICE

HCAL 150/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 150 OF 2008

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J U D G M E N T

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1.  This is an application for leave to judicial review two decisions of Mr T H Casewell, Permanent Magistrate, which he made on 27 November 2008.

2.  The matter was first listed for mention before me on 15 December 2008, at which stage there were 28 applicants.  The proceedings which had been before Mr Casewell had been adjourned to 16 December in Sha Tin Magistracy for mention.

3.  The application was adjourned today, and Mr Cheung, who appears for the respondent, undertook to seek the adjournment of the pending proceedings in the Magistracy to 9 January 2009.  That, I understand, has been done.

4.  On 16 December 2008, 10 of the initial applicants decided that they would plead guilty to the charge against them and did so.  The proceedings against them were also continued on 9 January when they due to appear for sentence.  They had today sought leave to withdraw their applications, that leave was granted.

5.  In the interim, a further person, who claims to be similarly affected by the Magistrate’s decision, indicated that he wished to join in the current proceedings.  A body order was issued for him to appear today.  The respondent has no objection to his participating in the proceedings, and leave was granted for him to join in these proceedings: for the sake of clarity, he will be cited as the 29^th applicant.

Background

6.  The applicants have annexed to their notice of application a document entitled “Grounds on which relief is sought”, the first section of which sets out what is described as the “Factual background and chronology”.  It is convenient to incorporate the contents of that section as it encapsulates the position of each applicant, and varies only as the identity, and the dates and places of their various arrests.  Those variance will not affect these proceedings.  It reads as follows:

(1)  The applicants are asylum seekers and/or torture claimants.  They are all Pakistanis.  Save the 1^st and 4^th applicants, who have been granted bail by the Court of First Instance, the other applicants are detained.

(2)  The common facts relating to the applicants as set out in the Schedule are as follows:

(1)  they entered into Hong Kong illegally;

(2)  they either surrendered themselves to the Immigration Department or were arrested by the police;

(3)  they have filed a claim with the Hong Kong Sub-Office of the United Nations High Commissioner for Refugee to be recognised as a refugee in accordance with the provisions of the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol and/or a claim with the HKSAR Government under the Convention Against Torture and other Cruel Degrading Treatment or Punishment 1984;

(4)  under the Prosecution Policy towards Refugees, Asylum Seekers and Torture Claimants dated 12^th March 2007 made by the Secretary for Justice, an asylum seeker or a torture claimant will not be prosecuted for an immigration offence relating to his claim, e.g. landing and remaining without permission of the Director, pending a determination by the relevant authorities of his claim under the Refugee Convention and/or the Torture Convention.  But he will be prosecuted if he commits an immigration offence which is not related to his claim, e.g. taking up illegal employment;

(5)  the applicants were subsequently released on recognizance by the Director on diverse dates under section 36(1) of the Ordinance pending the determination of their claims under the Refugee Convention and/ or the Torture Convention;

(6)  under the terms of recognizance, they were only subjected to one condition, namely that they had to report to the Immigration Department on a regular basis and on its breach, they would be liable to pay the surety money to the HKSAR government. They were not subjected to any condition which prohibited them from taking up any form of employment;

(7)  subsequently, it was alleged that the applicants had been found working in places of employment and they were arrested again by the police; and

(8)  each of them was charged with the offence of remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong contrary to section 38(1)(b) of the Ordinance on (and since) the dates of the 2^nd Arrest.

7.  There is one aspect of that summary that may be contentious: paragraph 2(6) asserts “They were not subjected to any condition which prohibited them from taking up any form of employment”.  It is true that on the face of the recognizances entered into by each applicant, there is no restriction on taking up employment.  However, in respect of some of the applicants in an annexure to the recognizance such a restrictive condition is imposed.  I do not regard it as necessary for the purposes of this leave application to consider whether a distinction should be drawn between the position of those applicants where such a condition appears in the annexure to the recognizance and those where it does not appear, although that may be an issue in due course.

8.  The prosecution alleges that whilst each of the applicants was at large in Hong Kong, after having entered into his recognizance, he was seen working.  Each applicant of course denies that whatever it may have been that he was doing it was pursuant to employment. That is a factual matter which the magistrate would have to decide, on the evidence, in each prosecution.  Simply, in respect of the applicants before me, there would be 19 trials.  There are, I am told, a number, possibly as many again, of other persons in a similar situation who potentially face prosecution.

The application for leave

9.  I am well aware of the approach adopted by the Court of Appeal, that applications for leave for judicial review in the course of ongoing criminal proceedings should be entertained only in truly exceptional circumstances: see, e.g. YEUNG Chung Pong v Secretary for Justice [2008] 3 HKLRD 1, CHIK Wen Fei & Anor v Secretary for Justice CACV 1411/2008, and the rationale for that approach.

10.  In my judgment, the issue raised by, particularly, the second decision which is sought to be reviewed is crisp.  If it is resolved, eventually, in favour of the applicants, then 19 or more trials, together with the potential subsequent appeals in the event of conviction, will become unnecessary: conversely, if it is resolved against the applicants, then the issues in any subsequent trials involving the applicants will be limited.

11.  Moreover, although charges are pending against each of the applicants, no single trial has yet commenced in the sense that no evidence has been led against any of the applicants.  The principal magistrate at Sha Tin Magistracy anticipated the problems with which his courts were likely to be faced and, wisely, listed the matters involving the original 28 applicants to be heard by one magistrate who was to determine, as preliminary points, two issues in respect of which leave is now sought.  This course was followed with the co-operation of both the Department of Justice and the Duty Lawyer Scheme.

12.  It is self-evident that, whatever the outcome, the result will be a substantial reduction in the burden imposed upon the fragile resources of the Duty Lawyer Scheme as well as the resources of the various government departments involved in the prosecutions and also the Judiciary.

13.  Although this is in no way definitive of the issue, I note that the Department of Justice has responsibly taken the position that it raises no objection, as a matter of policy or form, to the applicants making this application.

14.  A further factor is that the applicants are all likely to be in Hong Kong for a not inconsiderable period in any event, whilst they await decision on the claims which they have made regarding their status as an asylum seeker or a torture victim.

15.  In the circumstances I am satisfied that these factors render the present application as truly exceptional.  It is in the interests of the applicants, of the respondent and, overall, of justice that the application for leave be considered at this stage.

The decisions sought to be reviewed

16.  The two decisions which the applicants seek to review are those in which the magistrate held:

(1)  The prosecution of the charges under section 38(1)(b) of the Immigration Ordinance, Cap. 115, was within the prosecution policy, did not amount to an abuse of process and should proceed.

(2)  It is not possible for the applicants to successfully argue that the recognizances entered into by them under section 36 of the Immigration Ordinance amounts to an authority of the Director of Immigration to remain in Hong Kong or provides them with a defence to the charge.

The test to be applied

“The granting of leave to apply for judicial review is a matter for the court’s discretion to be exercised judicially.  The test which should be applied is the arguability test.  Under this test, arguability must mean reasonable arguability.  A claim for relief which is not reasonably arguable could not be regarded as arguable.  A reasonably arguable case is one which enjoys realistic prospects of success.  Whilst the test adopted represents a higher threshold than the potential arguably test, claims which are reasonably arguable would be given leave to go forward under it.  It is in the public interest that challenges which are not reasonably arguable should not be given leave to proceed.”

Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 §15

Prosecution policy and stay

17.  That a court, including a magistrate’s court, has power to stay proceedings on the grounds that they constitute an abuse of that court’s process as well as the tests to be applied by a court in arriving at its decision are both familiar areas of law now too well settled to require repetition in the context of this application.  Suffice it to say, the power to order a stay is one which is to be used only in the most exceptional circumstances: see HKSAR v LEE Ming Tee & Anor (2001) 4 HKCFAR 133 and, especially, Stock JA in YEUNG Chun Pong at §§7l -79.

18.  I do not regard it as either necessary or desirable to express any view at this stage upon the magistrate’s finding that the prosecutions fell within the current prosecution policy.  A prosecution policy is a framework within the parameters of which inevitability of prosecution may be introduced or an intent of lack of prosecution may be expressed: it does not qualify or abrogate any existing law or detract from a prosecuting authority's right to appropriately enforce an existing law.

19.  The position of the applicants may be shortly summarised as being that the prosecution is directly contrary to the expressed policy; that such a prosecution is thus per se oppressive; that, as a consequence, the prosecution inevitably amounts to an abuse of process.  Three English decisions upon which the applicants rely, R v Adaway [2004] EWCA Crim 2831, R v Uxbridge Magistrate's Court, ex parte Adimi [2001] QB667 and R v Asfaw [2008] 3 All E R 775, all support the proposition that there may be occasions when stay is appropriate, but each is factually distinguishable from the present.  I accept that there may be instances where a decision to prosecute outside an existing policy may be unconscionable sufficient to justify a stay, for example, where the decision to prosecute was taken malafides: I express no view at this stage as to whether prosecution contrary to an express policy is per se an abuse of process.

20.  It is helpful in order to place this application in context to extract from two paragraphs from the “Prosecution Policy towards Refugees, Asylum Seekers and Torture Claimants”:

“7.  The fact that a person is a refugee, asylum seeker or torture claimant will not lead to that person’s prosecution or detention in Hong Kong.  Making such claims is not an offence.  If the person is found to have committed an offence in Hong Kong, he may be liable to be prosecuted.  Most of these offences are immigration offences, e.g. entering Hong Kong illegally, overstaying.

8.  The present practice is as follows:

(1)  A person who seeks asylum, torture claim or both will not normally be prosecuted for an immigration offence, e.g. entering Hong Kong illegally, overstaying, until their claims and all appeal procedures have been concluded.  If a charge has been laid, the prosecution will apply for an adjournment.

(2)  Those persons will be prosecuted if they:

(a)  commit a serious immigration offence, e.g. a passport racket

(b)  commit a non-immigration offence, e.g. robbery

(c)  commit an immigration offence which is not related to the claim, e.g. taking up illegal employment.”

21.  That policy was adopted because the prosecuting authority recognized that:

“If a person who entered Hong Kong without adherence to proper procedures is an asylum seeker or a torture claimant, this, of itself, will not result in a prosecution.  The claim that is made may be legitimate, and it would not be just for the Department of Justice to prejudge the bona fides of a claim for asylum or torture which is subject to processing by, respectively, the UNHCR or the HKSAR Government....  The high standards of fairness, as described by the Court of Final Appeal in Prabakar, must, throughout, be scrupulously observed, and those responsible for public prosecutions must not jump the gun."

as explained in a statement dated 6 March 2007 emanating from the Department of Justice.

22.  It is not in dispute that each of the present applicants was prosecuted because he was thought to have breached paragraph 8(2)(c), having been seen working.  That this was the trigger for the prosecution cannot be doubted even from the face of the charges: the date of commission of the offence said to have been committed by each applicant was the date upon which he was arrested when allegedly working, in each instance some considerable time after he had landed unlawfully in Hong Kong.  On the face of it, the choice of that date is a curiosity but its selection is explained by the prosecution as demonstrating that the applicants are not being charged for the “original” offence, related to the claims.

23.  The difficulty which faced the prosecution in framing the charges is that, as Mr Cheung now accepts, none of the applicants had taken up “illegal” employment and that, in the circumstances, it was not an “immigration offence” for them to take up employment.  Mr Cheung admits to being the author of this policy document: he candidly accepts that paragraph 8(2)(c) “wrongly”' expressed the intention behind the policy.  He was unable to assist, in the course of argument, with any suggestion as to what other “immigration offence” it may be that each of the applicants was said to have committed which was not related to his claim but which may have triggered these prosecutions.  He suggests, however, that the policy should be interpreted so as to be understood to include a prohibition against taking up employment of any form.  Without expressing any views on that submission, that is a matter which the prosecution may wish to argue.

24.  It must be equally arguable, and reasonably so, that such an interpretation would be untenable.  If it proves to be so, then, it is the applicant’s submission, they would have been prosecuted not simply outside an existing policy but in complete contradiction of it, even if the prosecutions were not mala fides but resulted from a misinterpretation or misapplication of the policy.  In those circumstances, they contend that the prosecution would amount to an abuse of process and that the magistrate should have granted a stay of proceedings.

25.  It seems to me that to prosecute in what is arguably flat contradiction of a publicised, express policy not to do so, directed towards a well-defined segment of persons in Hong Kong, falls into the category of very rare instances when an application for stay has prospects of success even though a fair trial remains possible (LEE Ming Tee at 615G-H).  On that basis, this would have been a matter which, had the magistrate been satisfied that there was an abuse of process, it is reasonably arguable that he would have been justified in ordering a stay of proceedings.

Whether a recognizance issued under section 36 amounts to “authority” to remain in Hong Kong

26.  There is no dispute that each of the applicants landed in Hong Kong unlawfully and, having done so, remained without the authority of the Director of Immigration until such time, at least, as he was arrested.  It is each applicant’s contention that once the director accepted a recognizance from him and he was allowed to roam at large, he was in Hong Kong with the Director’s “authority”.  Each applicant asserts, in uncomplicated terms, that common sense and simple linguistics demand that when you are told that you may remain in a place subject to a specific condition, in this case to report to an identified person from time to time, you must be in that place with the authority of the person who imposed the condition.  There is, at least, a logical attraction to that argument.

27.  The respondent contends that the applicants’ ability to roam at will pursuant to the issue of the recognizance is merely a tolerance of their presence whilst their claims under the Refugee Convention or the Torture Convention are being processed, is an administrative convenience and does not constitute an authority as contemplated in section 13 or 38(1)(b) of the Ordinance.  That is not a contention which may be summarily dismissed.

28.  Such decisions as there have been to date in the Court of First Instance on this issue have not resulted from criminal proceedings.  It may well be that those decisions are capable of being imported into the criminal law: it may well be that they are found to be of persuasive value rather than having any direct bearing on a criminal prosecution: it may well be that they are found not to be of any assistance on the facts of these matters.

29.  I am satisfied that the applicants have shown, in respect of each decision, that they have a reasonably arguable case.  Consequently, leave is granted and there will be an order in terms of paragraph 6 of the draft order.  It will further be an order that the costs of these proceedings be reserved.